FEB. 24, 2004. New York City wants to ban vendors from a large swath of lower Manhattan, including the area where the World Trade Center once stood. The most controversial of several proposed new vending laws specifically targets disabled veteran vendors, and First Amendment-protected street artists and written matter vendors.

That law originated in the New York State Assembly, though the moving force behind it has been the Business Improvement Districts (BID), which is also pushing two vending laws under consideration by the New York City Council. Another law on the table, proposed by New York City Mayor Bloomberg, was written by the Central Park Conservancy.

On the Offensive
While bans on First Amendment-protected vending must be based on a compelling government interest in public safety, the unusual rationale for these proposed bans is largely that vending in the vicinity of what has now become the single most visited site in the United States "offends" the families of victims of 9/11.

If being offensive were a basis for banning speech, there would be no free speech. The First Amendment was created to protect unpopular speech, especially speech that is likely to be found offensive by someone in a position of power who might want to censor it.

Ironically, the ban would include the lower Manhattan area where the United States Constitution was written and George Washington was sworn in as President, and where vendors have operated continuously since before the American revolution.

Demonizing Vendors
So far, most legislators, and even many veterans and street artists, have only looked at the proposed ban from a business perspective. They reason that while street vendors will be banned from this downtown area, and a large part of midtown Manhattan, there are still many other areas left where they will be allowed to sell.

Legislators are driving home this argument with a carrot and stick approach. Some veteran vendors and street artists have been offered a variety of deals in exchange for their tacit support of the bill, including preferential treatment over their colleagues. Vendors who resist the deals are warned that the City and the State will pass far more stringent restrictions on their activities, essentially putting them out of business altogether.

The cause of street vending suffered damage when some of them flocked to the Ground Zero site after 9/11 in order to sell souvenirs to tourists. NYPD and FDNY memorabilia and photos of the WTC collapsing offended many people. As a result, the BIDs, the long-time opponents of all vendors, have been able to unfairly demonize all New York vendors as ghouls who profited from disaster.

The Real Profiteers
If profiteering and offensiveness were real concerns, the proposed ban should extend to the media, which has made an obscene amount of money in the past three years from the exploitation of photos and articles about 9/11, as well as politicians and elected officials, most notorious among them former New York Mayor Rudolph Giuliani and George W. Bush. They have spent the past three years shamelessly squeezing from the 9/11 disaster every ounce of financial and political profit possible.

Giuliani has become a multi-millionaire since 9/11 traveling the lecture circuit where he gets $100,000 for delivering a self-serving ten minute speech about how he "saved New York City" on that day. George W. Bush, New York Governor George Pataki and countless other elected officials have been exploiting the WTC site with an eye towards their re-election campaigns ever since 2001.

The Republican Convention is going to be located in New York City this summer specifically to exploit the site as a backdrop for President Bush's re-election campaign, despite the disgust publicly expressed by many of the survivors of 9/11.

The WTC site rebuilding effort is itself a thoroughly commercial enterprise. Plans include a vendors market where a desirable location will go for a small fortune, a cultural center where arts groups with connections to corporate interests will ply their trade, and hundreds of stores, many of which will undoubtedly find that World Trade Center and 9/11 memorabilia are the most profitable items for them to sell.

Supporters of the ban also claim they're fighting street congestion, saying public safety must be protected. The truth is that New York City already has numerous legal means at its disposal to deal with congestion and public safety, including a 60-page vending ordinance that all vendors and artists remain subject to. The city has deliberately refrained from enforcing it in order to create a justification for this vending ban which they intend to use as a precedent, ultimately expanding it to much of the city.

Vets At Ground Zero
When I tell disabled veteran vendors that they should never agree to such a ban, they routinely say, "That's fine for artists because you are protected by the First Amendment. We're not."

That's a major tactical error on their part. While the items they prefer to sell may not be First Amendment-protected, the very activity of a wounded combat veteran setting up a vending stand on a public street is a form of free speech.

It says to the public, "I risked everything to defend your way of life and now, here I am, allowed to work on any street as a vendor in recognition of my service." If that's not making a statement, expressing a view and communicating with the public, what is?

The courts may agree. In the 1996 Federal Appeals Court ruling that granted street artists full First Amendment protection, the Second Circuit Court made this very point, that not only are artists and the works of visual art they create protected by the First Amendment, but that the act of displaying art on the street carries its own message, separate from that expressed in the art.

"Visual art is as wide ranging in its depiction of ideas, concepts and emotions as any book, treatise, pamphlet or other writing, and is similarly entitled to full First Amendment protection ... Visual artwork is as much an embodiment of the artist's expression as is a written text, and the two cannot always be readily distinguished ... The sale of protected materials is also protected ... Furthermore, the street marketing is in fact a part of the message of appellants' art.

"Displaying art on the street has a different expressive purpose than gallery or museum shows; it reaches people who might not choose to go into a gallery or museum or who might feel excluded or alienated from these forums. The public display and sale of artwork is a form of communication between the artist and the public not possible in the enclosed, separated spaces of galleries and museums ...

"Appellants are interested in attracting and communicating with the man or woman on the street who may never have been to a gallery and indeed who might never have thought before of possessing a piece of art until induced to do so on seeing appellants' works. The sidewalks of the City must be available for appellants to reach their public audience."

Vending Is Speech
Disabled veteran vendors are ignoring the single most significant aspect of their unique vending rights: that their current right to vend on any street is a forum from which to communicate to the public, the media, and elected officials about veterans' issues.

And what more appropriate spot in all of New York City to do this than the area around Ground Zero, now one of the most significant venues in the entire world for political expression, and the rallying place for a "war on terror" the President says will go on for decades and which is already creating thousands of newly disabled veterans?

Likewise, those artists and legislators who are willing to accept an area-specific ban on the activities of First Amendment-protected vendors are being short-sighted. Visual and written expression are potent mediums of political speech.

Whether you want to wave an American flag and sell re-elect Bush-Cheney buttons, or sell booklets stating that the Bush administration allowed 9/11 to happen for political gain, there is no better sidewalk in the entire world from which to communicate a message to a wide audience than the one near Ground Zero.

A ban on First Amendment-protected vending will not just mean a ban on sales of newspapers, religious texts, and any and all forms of political speech. Contrary to BID disinformation, it will be a ban on all free speech  whether you're selling it or giving it away. The only way the ban can withstand an equal protection challenge in court is to also ban people from giving away a political leaflet or make a speech in the area, regardless of whether or not any selling is taking place.

Unequal Enforcement
It goes without saying that the legislators proposing this ban have no intention to evenhandedly enforce it. No one plans to stop elected officials from freely exercising their rights in the area, and the main BID behind the ban  The Alliance for Downtown NY  routinely exploits this very area for tourism and corporate promotions of every imaginable style. The Alliance even advertises Ground Zero tours, complete with discount coupons for their member bars and restaurants.

To selectively ban free speech at Ground Zero is a great insult to the memory of every person who died there on 9/11. To truly honor the dead, one should respect both the highest constitutional principles this nation is based on, and the men and women in the armed services who have risked so much to defend them.

The right of expression free from government interference or censorship is the essence of the freedom George W. Bush claims makes "terrorists" hate us. We can't defend liberty by eliminating it. All who value their individual freedoms and believe in America should unequivocally oppose New York City's offensive against street vendors' free speech.